Texas Impact and the Texas Interfaith Center for Public Policy have joined with other religious organizations to file an amicus brief in Espinoza v. Montana urging the U.S Supreme Court to reaffirm traditional American religious liberty. For many religious traditions, the religious education of children is essential to ensuring future adherents of that faith. Traditional American religious liberty protects this right, but also protects people of different faiths from paying for it.
Currently, at least 37 state constitutions limit state governments from coercively taxing and spending public funds to pay for religious schools. Proponents of taxpayer-funded sectarian education have challenged one of these state constitutional provisions in Montana. The U.S. Supreme Court will decide in Espinoza v. Montana whether states may provide more protection than the U.S. Constitution does to prevent taxpayers from being forced to subsidize other people’s religious upbringing.
Texas, like Montana, has a “no funding for religious education” provision in its state constitution. Far from pioneering a new concept, the Texas Constitution is part of a long history of state-level disestablishment dating to the nation’s founding. James Madison was opposing state-level legislation in Virginia that would have funded religious education when he penned his famous dictum that government could not compel even “three pence” of a person’s property to religious activity. Madison not only succeeded in defeating the legislation, but went on to prohibit public funding for religious schools in the Virginia Constitution. Throughout the 18th and 19th centuries, a supermajority of other states followed Virginia’s lead.
Since 1876, Texas law has been well settled. During the 1880’s and 1890’s, Texas law protected our religiously diverse population by explicitly prohibiting indirect “subterfuges” when various religious schools tried to circumvent the Texas Constitution to access public funds for religious schools. When the issue resurfaced a generation later in the 1940’s, the Texas Attorney General reaffirmed on three separate occasions that creative schemes to fund indirectly sectarian education were prohibited. During the civil rights era, Governor Allan Shivers’ Advisory Committee on Segregation in the Public Schools recommended a school voucher system to evade integration after Brown v. Board of Education. The failed legislation resulting from the recommendation would have required the voucher to be used at non-religious private schools to avoid violating the Texas Constitution.
Maximizing religious freedom in a religiously pluralistic society requires that religious education be paid for privately and voluntarily. Should Texas’ right to exceed the protections in the U.S. Constitution be nullified, the U.S. Supreme Court would be departing from nearly 250 years of America’s traditional religious liberty and thwarting the original intent of the founders of the U.S.; Texas; and a supermajority of state constitutions.